Goldsmiths and Jemima Khan win email privacy ruling

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Tory MP Zac Goldsmith, his ex-wife Sheherazade and his sister Jemima Khan have won High Court orders preventing the disclosure of private information.

The injunctions were granted in December 2008 after the Goldsmiths, who were divorced last year, and Ms Khan were the “victims of a crime”, Justice Tugendhat confirmed yesterday.

An unidentified person had hacked into the email accounts of Mrs Goldsmith and Mrs Khan and sent emails to a national newspaper journalist, purportedly from Mrs Goldsmith herself, containing personal information about her and her family.

The journalist’s suspicions were aroused and she alerted the Goldsmiths who, with Mrs Khan, were “greatly distressed” by what had occurred and applied urgently to the High Court before even issuing the claim forms, as the rules permitted them to do.

The 2008 proceedings were anonymised and subject to a “super injunction” provision prohibiting the publication of all information relating to them so as to thwart publication by the then unknown defendant.

By the end of January 2009, there were grounds to suspect the hacker was a woman – who can only be identified as BCD – who was arrested in May that year, although the police decided not to prosecute after she expressed remorse and accepted a caution.

After going to the police, said the judge, the claimants did nothing to progress their claim – which may well have been motivated by mercy – but overlooked that they had given undertakings to serve the claim forms, which they did not do.

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A number of national newspapers had been notified about the orders and raised no objection until December 2010, when solicitors for News Group Newspapers wrote to the claimants’ solicitors making the point that by this time the anonymity provisions in the 2008 orders were no longer necessary.

This led to the discovery that the claimants were in breach of undertakings that necessitated a fresh court hearing, which was held in private earlier this month.

The judge said: “The reason why there had to be a hearing in this case was because a breach of an undertaking is very serious, and must be fully explained to the court, and the court must consider what to do in response to it.”

Giving his reasons in public for discharging the 2008 orders and making fresh ones, the judge said that while the breach of undertakings, for which the claimants had apologised, was culpable, it was not intended for an improper purpose.

The evidence as to the past behaviour of BCD, whose mental health remained fragile, was such that there remained a risk to the claimants from which they were entitled to be protected.

He said that the injunction preventing publication of the contents of the e-mails involved no interference with the freedom of expression of anyone.

“Even in December 2010, what the newspaper publishers sought was the removal of the anonymity and restriction on reporting the fact of the injunction.

“No-one has suggested that the personal e-mails exchanged within a family which are disclosed by a hacker should not be the subject of an injunction to restrain a breach of confidence in ordinary form.

“However the order for anonymity and the order restraining ‘the publication of all of the information relating to these proceedings or information describing them’ were interferences with freedom of expression and derogations from open justice.”

They were justified when they were made, but should not have lasted longer than the time necessary to serve the claim forms.